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Trial counsel wasn’t ineffective for failing to challenge officer’s credibility at suppression hearing

State v. Royce O. Bernard, 2017AP2162-CR, District 1, 5/22/18 (one-judge decision; ineligible for publication); case activity (including briefs)

After being charged with carrying a concealed weapon, Bernard challenged the Terry stop that led to the charge. His suppression motion was denied. Postconviction he argued trial counsel was ineffective because he failed in various ways to undermine the credibility of the officer who stopped Bernard. The court of appeals holds Bernard’s postconviction motion failed to allege sufficient facts to get a Machner hearing.

In particular, Bernard argues that: (1) the officer’s written report about his route of travel could not have been accurate; (2) his timeline was wrong; (3) he lied about following all traffic rules based on the route he described; (4) his belief Bernard (6 feet, 160 pounds) was a juvenile was incredible; and (5) the computer aided dispatch (CAD) report regarding the incident contradicts the officer’s testimony. (¶15). The court of appeals agrees with the circuit court that there was no prejudice, as none of these challenges would have undermined the officer’s credibility enough to undermine confidence in the decision denying the suppression motion.

  • As to the first three challenges, despite those problems with the officer’s testimony it is still clear the officer was in the vicinity of a possible stolen vehicle and that Bernard was close by. (¶¶22-23).
  • Regarding the observation Bernard was juvenile, the officer made the assessment in the dark, without standing face to face with Bernard, so this argument doesn’t undermine the officer’s credibility enough to matter. (¶24).
  • Finally, the CAD report referred to a “traffic hazard” being the reason for the call to police, not a “stolen vehicle,” as the officer testified. But the CAD report allows only limited information to be entered, and the salient facts were that the car was found stopped and running, which is indicative of a stolen vehicle, according to the officer. Thus, this discrepancy doesn’t undercut the officer’s credibility enough to undermine confidence in the outcome of the suppression hearing. (¶¶25-28).

As is not uncommon in our court of appeals’ decisions, the court sometimes misstates the prejudice standard as whether there is a reasonable probability trial counsel’s failures “altered the outcome” of the proceeding. (¶¶23, 24). In fact, the standard (which the court actually quotes (¶17)) is whether there’s a reasonable probability trial counsel’s deficiency undermines confidence in the outcome, which is a lower standard.

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